(dissenting) — In a recent and highly publicized opinion, the United States Supreme Court justified its denial of federal constitutional protections against eminent domain abuse by acknowledging the states’ power to afford their citizens greater protection against such abuse.
[N]othing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.
Kelo v. City of New London, 545 U.S. 469, 125 S. Ct. 2655, 2668, 162 L. Ed. 2d 439 (2005) (footnote omitted).
*640¶59 In the wake of Kelo, legal scholars and citizens exulted that Washingtonians were insulated from such abuses because the plain language of the Washington Constitution, as previously enforced by this court, afforded broader protection against eminent domain abuse than its federal counterpart. See Const, art. I, § 16. Unfortunately, the majority of this court is less enlightened than the citizenry or less inclined to restrain public agencies in their taking of private property. I side with the citizens and our Washington Constitution. I therefore dissent.
I. FACTS
f 60 Special protection against taking of private property is found in our constitution’s article I, section 16 “Declaration of Rights.” These protections were enacted to protect citizens from abuse of government powers. The settlers of Washington came here drawn by the opportunity to own their own property and many fled from abusive governments. In this case, we have a good example.
¶61 In 1941 an immigrant railroad laborer, Henry T. Kubota, purchased the Seattle Hotel that was situated on real property in Seattle’s Pioneer Square, the subject of the present litigation.22 In the wake of Pearl Harbor, and pursuant to President Franklin D. Roosevelt’s Executive Order 9066, 7 Fed. Reg. 1407 (Feb. 25, 1942), Kubota was displaced to a Japanese-American internment camp. See generally Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944) (upholding constitutionality of military order implementing Executive Order 9066). Although many internees lost all their possessions during this period, a loyal friend managed Kubota’s property, returning it to him after his release.
¶62 The Seattle Hotel suffered extensive damage during the earthquake of 1949. Despite Kubota’s repairs, the *641hotel’s useful life had been exhausted by 1960, and it was demolished. Kubota then entered into a long-term lease that proposed the construction of a six-story office building atop a parking garage. To Kubota’s disappointment, only the parking garage was constructed, which is now commonly referred to as the Sinking Ship garage. Kubota retained the long-term dream of a larger development. Since Kubota’s death in 1989, his descendents have managed the property under his namesake, HTK Management, L.L.C. (HTK).
¶63 In 2002, the predecessor of the Seattle Monorail Project23 (hereinafter Monorail) identified the Sinking Ship parcel as a potential monorail station site. HTK learned this information from a local newspaper rather than being contacted directly by the agency.
f 64 Shortly thereafter, HTK expressed its willingness to collaborate with Monorail so that both parties could implement their visions for the parcel — Monorail’s station on a fraction of the block, coupled with HTK’s redevelopment of the remainder of the parcel. The parties began planning for this complementary development. It appears HTK was more sincere than Monorail, and the agency plans took a different direction.
¶65 On April 7, 2004, Monorail passed Resolution 04-16 to acquire the entire Sinking Ship parcel by condemnation. Resp’t’s Ex. 13, at 8. Three weeks later, on April 28, 2004, Monorail filed a petition against HTK for condemnation in King County Superior Court, seeking a fee interest in the entirety of the parcel. Clerk’s Papers (CP) at 3.
¶66 On August 13, 2004, HTK filed a motion to dismiss the condemnation action for lack of subject matter jurisdiction on the grounds that Monorail’s enabling legislation failed to prescribe the agency’s condemnation procedure. CP at 41. The trial court denied both HTK’s motion and a *642subsequent motion for reconsideration. CP at 199-202, 215-16.
¶67 On September 13, 2004, the trial court held a hearing on public use and necessity in which Monorail sought to justify its condemnation of the entire parcel. Monorail conceded that the station footprint would occupy only approximately one-quarter to one-third of the parcel.24 The following diagram is typical of the preliminary designs entered into evidence:
[[Image here]]
*643¶68 Monorail asserted that condemnation of the parcel outside the footprint of the monorail station (remainder property) was needed for construction staging and staff parking activities. Thus, Monorail argued that these purposes of its condemnation constituted a public use.
¶69 HTK conceded that both the station and construction staging may be public uses. However, they countered that because construction staging and parking25 is inherently temporary, Monorail was not justified in condemning a fee interest in the remainder property. Accordingly, HTK urged the court to grant Monorail a fee interest in the station footprint and at most a construction easement on the remainder property.
¶70 At the hearing, HTK presented evidence to demonstrate that Monorail sought to condemn more property than necessary in order to profit from the increased value of the parcel after monorail construction. The concept of agency profit from such land transactions was discussed by Monorail from its very inception. The petition creating the monorail noted:
Rights of Way: Market value paid on the limited number of properties that must be acquired, some easements to be purchased, and high-value properties resold when construction is completed.
Resp’t’s Ex. 20, at 44 (emphasis added).
¶71 Monorail subsequently adopted an internal development policy that anticipated selling “remainder property” to private developers. Referred to as “associated development,” Monorail defines it as:
a free standing project not connected to a station, built by a third party on land that SMP has fee ownership or some development rights and is most likely built after a station is built. The land can be sold outright or ground leased.
*644Resp’t’s Ex. 12, at 1. After adopting this “associated development” policy, Monorail even sought out “site specific recommendations for [associated] types of development opportunities.” Id.
¶72 Monorail also emphasized its “associated development” policy in the Design-Build-Equip Contract — the contract to be awarded to the winning bidder for construction of the monorail.26
The SMP has and will be acquiring property for Stations and is interested in maximizing the development potential of such properties. In some instances, the SMP will be required to acquire a complete site and may, once the Station is complete, sell or lease a portion of the site to private parties who would develop this excess property for commercial use. This type of development is referred to as “Associated Development.”
Resp’t’s Ex. 26, at DBEC-222 (emphasis added).
¶73 In addition to these monorail policies, HTK provided specific evidence that Monorail planned “associated development” for this Sinking Ship parcel. The Transit Way Agreement27 planned for “[associated development of the unused portion of the parcel bounded by 2nd Avenue, James Street and Yestler Way (a.k.a., ‘Sinking Ship Garage.’).” Ex. C (Resp’t’s Ex. 23) at 4. The agreement set “associated development” for the Sinking Ship parcel as a “priority.” Id. Moreover, at a Pioneer Square community meeting, the “[Monorail] told the community that the residual property would be sold and it did not know yet how the property would be used.” Resp’t’s Ex. 15.
¶74 To this evidence Monorail responded that it had no definitive postconstruction plans for the remainder property and that absent a demonstration of fraud or bad faith, the agency was entitled to condemn the parcel in its entirety. The trial court entered a judgment of public use and necessity. HTK now appeals.
*645II. ANALYSIS
A. Procedures for Condemnation
¶75 Petitioners first assert that the trial court lacked jurisdiction over this matter because Monorail’s enabling act fails to expressly prescribe the procedures by which the agency exercises its eminent domain authority. See State ex rel. Mower v. Superior Court, 43 Wn.2d 123, 260 P.2d 355 (1953). With respect to this argument, however, I reluctantly conclude with the majority that lack of such procedures did not deprive the trial court of jurisdiction.
|76 The statute does specify that Monorail could “acquire by . . . condemnation.” RCW 35.95A.050(1).28 Our case law establishes that condemnation procedures may be fairly implied if necessary to effectuate the legislature’s intent. See In re Petition of City of Seattle, 96 Wn.2d 616, 629, 638 P.2d 549 (1981) (Westlake). In addition, the differences between procedural statutes are largely inconsequential and “embrace the same procedural theory, namely . . . the entry of three separate and distinct judgments during the course of a proceeding.” Pub. Util. Dist. No. 1 of Chelan County v. Wash. Water Power Co., 43 Wn.2d 639, 641, 262 P.2d 976 (1953). The determination that Monorail’s condemnation procedures may be fairly implied from an express grant of authority does not address the scope of the condemnation authority. This is a constitutional issue that I believe is determinative here.
B. Scope of Condemnation Authority
¶77 Municipal corporations do not possess an inherent power of eminent domain and thus may exercise such power only when expressly authorized to do so by the state legislature. See, e.g., State ex rel. Tacoma Sch. Dist. No. 10 v. Stojack, 53 Wn.2d 55, 60, 330 P.2d 567 (1958). Statutes conferring such power are in derogation of the common right, State ex rel. King County v. Superior Court, 33 Wn.2d *64676, 82, 204 P.2d 514 (1949), and “must be strictly construed, both as to the extent of the power and as to the manner of its exercise.”29 State ex rel. Postal Tel.-Cable Co. v. Superior Court, 64 Wash. 189, 193, 116 P. 855 (1911).
¶78 Monorail is a special purpose district that performs a single, narrowly circumscribed function: construction and operation of a monorail.30 The extent of Monorail’s condemnation powers are set forth in RCW 35.95A.050(1), which authorizes city transportation authorities:
To acquire by purchase, condemnation, gift, or grant and to lease, construct, add to, improve, replace, repair, maintain, operate, and regulate the use of public monorail transportation facilities, including passenger terminal and parking facilities and properties, and other facilities and properties as may be necessary for passenger and vehicular access to and from public monorail transportation facilities, together with all lands, rights of way, and property within or outside the authority area, and together with equipment and accessories necessary or appropriate for these facilities ....
RCW 35.95A.050(1). Although Monorail is entitled to acquire property by “condemnation,” the purposes of the condemnation must be for the purpose of “public monorail transportation facilities.” In addition, any condemnation must not violate our constitutional prohibition against the taking of private property for private purposes.
Private property shall not be taken for private use. . . . No private property shall be taken or damaged for public or private use without just compensation having been first made. . . . Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and *647determined as such, without regard to any legislative assertion that the use is public.
Const, art. I, § 16 (emphasis added).
¶79 To determine whether the use of the eminent domain power is allowed by our constitution, we employ a three-part test:
(1) that the use is really public, (2) that the public interests require it, and (3) that the property appropriated is necessary for the purpose.
Westlake, 96 Wn.2d at 625 (citing King County v. Theilman, 59 Wn.2d 586, 593, 369 P.2d 503 (1962)). See also State ex rel. Wash. State Convention & Trade Ctr. v. Evans, 136 Wn.2d 811, 817, 966 P.2d 1252 (1998) (Convention Center).
¶80 As we are dealing with constitutional rights of the legal owner, the burden of proof is on the condemning agency, not on the condemnee, to demonstrate that the condemnation is for a public use and that it is necessary for that public use. Convention Ctr., 136 Wn.2d at 822-23; Theilman, 59 Wn.2d 586; State ex rel. Sternoff v. Superior Court, 52 Wn.2d 282, 325 P.2d 300 (1958).
¶81 As the majority correctly states, the determination that a condemnation is for a public use is not the same thing as public necessity. See, e.g., Theilman, 59 Wn.2d at 594 (“ ‘Public use’ and ‘necessity’ cannot be separated with scalpellic precision, for the first is sufficiently broad to include an element of the latter.”). In article I, section 16 our state constitution directly addresses only the “public use” inquiry. See State ex rel. Puget Sound Power & Light Co. v. Superior Court, 133 Wash. 308, 311, 233 P. 651 (1925). The remaining two inquiries regarding public interest and necessity are judicial corollaries to enforce the constitutional mandate. Unfortunately, the majority errs by greatly blurring the distinctions between the constitutionally mandated inquiry into public use and the judicial corollary of necessity. There are two inquiries: Is this property necessary for the public purpose? Is all this property necessary for the public purpose? Here, the wrong answer to the latter *648inquiry is given, and a violation of constitutional rights results.
C. Public Use
¶82 As previously stated, the inquiry into public use is constitutional in nature. As an initial matter, the majority states that a legislative declaration of public use is “entitled to great weight.” Majority at 629 (citing City of Des Moines v. Hemenway, 73 Wn.2d 130, 437 P.2d 171 (1968)). It is stupefying that the majority claims that we must give “great weight” to such determinations when our constitution mandates that this “shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public.” Const, art. I, § 16 (emphasis added).
f 83 Use of the word “shall” is imperative and operates to create a duty rather than to confer discretion. See, e.g., Crown Cascade, Inc. v. O’Neal, 100 Wn.2d 256, 668 P.2d 585 (1983). Moreover, “regard” is defined as “to look at,” “show respect or consideration for,” “to take into consideration or account,” or “to pay attention.” Webster’s Third New International Dictionary 1911 (2002).
¶84 Thus, when our constitution states that the courts must make this determination “without regard to any agency’s legislative assertion,” it means that we must not show deference to the legislative assertion of public use; we decide the question independently. The plain language of our constitution does not require any deference and in fact mandates exactly the opposite. To the extent that this assertion by the majority is based on erroneous jurisprudence, it defies the plain language of our constitution and should be overruled. Not surprisingly, more persuasive case law also supports the contrary conclusion, that the question is judicial.31
*649¶85 Although we have not settled onto one single definition of public use, we have always indicated it means more than mere beneficial use. Westlake, 96 Wn.2d at 627. In Convention Center, we explained the constitutional test for adjudicating public use.
Article I, section 16 prohibits the taking of private property for private use. Thus, this court must ensure that the entire parcel subject to the eminent domain proceedings will be employed by the public use. The relevant inquiry is whether the government seeks to condemn any more property than would be necessary[32] to accomplish purely the public component of the project. If the anticipated public use alone would require taking no less property than the government seeks to condemn, then the condemnation is for the purpose of a public use and any private use is incidental.
Convention Ctr., 136 Wn.2d at 822 (emphasis added). In other words, our constitutionally mandated public use inquiry seeks to determine whether the government is condemning any more real property than needed for the project.
¶86 The rule as articulated in Convention Center has deep roots in our eminent domain jurisprudence. For example, in Stojack, 53 Wn.2d at 63-64, we stated that:
*650[p]ublic education is a public use for which private property may be appropriated under the power of eminent domain. If an attempt is made to take more property than is reasonably necessary to accomplish the purpose, then the taking of excess property is no longer a public use, and a certificate of public use and necessity must be denied.
Accord 9 Nichols on Eminent Domain § 32.05 (3d. ed. 2005); City of Pullman v. Glover, 73 Wn.2d 592, 595, 439 P.2d 975 (1968) (“[T]he extent of the taking may be no greater than is reasonably necessary for the stated public purpose.”).
¶87 This same rule has also been reiterated with respect to the interest to be acquired.
When a legislature delegates to any subordinate agency, such as a municipality or a public service corporation, the right and authority to exercise the power of eminent domain, it ordinarily defines the estate or interest to be appropriated, having power to authorize the taking of a complete fee simple title, a qualified fee, or an easement only. When it has prescribed by statute the extent of interest to be vested, none further can be taken. Courts in construing statutes which grant the power, and authorize the taking of a certain estate or interest, enforce the rule of strict construction, permitting no greater title or interest to vest than has been expressly authorized or may be necessary to the contemplated public use. When an easement will be sufficient, no intendment or rule of liberal construction will be indulged to support an attempt to obtain any greater interest or estate.
Neitzel v. Spokane Int’l Ry., 65 Wash. 100, 105, 117 P. 864 (1911) (emphasis added). We have also stated the rule as follows: *651City of Seattle v. Faussett, 123 Wash. 613, 618, 212 P. 1085 (1923) (emphasis added) (quoting 10 Ruling Case Law 88). Accord State v. Larson, 54 Wn.2d 86, 89, 338 P.2d 135 (1959) (“no greater estate or interest should be taken than is reasonably necessary to accomplish the public use or necessity.”); State ex rel. Eastvold v. Superior Court, 48 Wn.2d 417, 294 P.2d 418 (1956).
*650“Inasmuch as property cannot constitutionally be taken by eminent domain except for the public use, it follows that no more property shall be taken than the public use requires; and this rule applies both to the amount of property and the estate or interest in such property to be acquired by the public. If an easement will satisfy the requirements of the public, to take the fee would be unjust to the owner, who is entitled to retain whatever the public needs do not require, and to the public, which should not be obliged to pay more than it needs.”
*651¶88 The above case law is unequivocally clear: if a government entity seeks to condemn more property than is needed, the excess property is not for a public use and may not be lawfully condemned. This rule is so well engrained that we have called it a “universal rule.” City of Tacoma v. Humble Oil & Ref. Co., 57 Wn.2d 257, 356 P.2d 586 (1960).
¶89 Unfortunately, the majority disregards this “universal rule” of our eminent domain jurisprudence. The majority correctly states that a legislature’s grant of eminent domain power to a municipality is to be strictly construed but immediately backpedals to avoid construing that authority so strictly as to actually restrict the agency. Majority at 622. The majority cannot show that following our “universal rule” here, by allowing Monorail to condemn only the property interests necessary to accomplish its purposes (a fee in the station footprint and, at most, construction easement in the remainder), would “defeat the purpose of the legislative grant.” The contrary conclusion is further supported by the fact that other monorail station sites do not require an entire block for “staging and staff and labor parking.”
¶90 More importantly, however, the majority would destroy our “universal rule” by stating that “decisions as to the amount of property to be condemned are legislative questions, reviewed under the legislative standard for necessity.”33 Majority at 633. It finally concludes that declarations of necessity by a condemning agency are conclusive *652absent fraud or arbitrary and capricious conduct. This is abdication of the court’s constitutional duty.
¶91 If, as the majority suggests, decisions as to the extent of property to be condemned fall under necessity, and judicial review is properly characterized by deference, there are no effective means by which the courts may carry out the constitutionally mandated independent inquiry into public use. If the majority seeks to overrule our “universal rule,” it should do so explicitly.
¶92 Moreover, precedential support for the majority’s conclusion is lacking. Specifically, the majority’s reliance on Humble Oil and In re Petition of Port of Grays Harbor, 30 Wn. App. 855, 638 P.2d 633 (1982), for the proposition that decisions as to the amount of property to be condemned as legislative questions, reviewed under the deferential standard are misplaced. Nor are these cases controlling as the majority suggests.
f 93 In Humble Oil, 57 Wn.2d 257, the city of Tacoma developed a hydroelectric project on the Cowlitz River in order to meet the city’s electricity needs. Because the reservoir behind the dam would inundate the condemnee’s land, the city sought to condemn a fee interest in the portion to be inundated. Although the condemnee stipulated that the hydroelectric project was a public use, he argued that he should be able to retain the mineral rights under the inundated land. In contrast, the city argued for a fee simple on the grounds that without a fee it could not “operate and control the reservoir satisfactorily,” including concerns over pollution, subsidence, loss of fish life, among others. Id. at 259. The court granted an order of public use and necessity. The reason that the court determined that it *653would not interfere with the “selection” of land was precisely because doing so would interfere with the very purpose of the project, by creating pollution, etc. The same cannot be said for the instant case.
¶[94 The majority also relies on Port of Grays Harbor. Not only is Port of Grays Harbor a Court of Appeals case that is not binding on this court, the case doesn’t even purport to construe article I, section 16 of our state constitution. Rather, it interprets article VIII, section 8, which is a separate broad constitutional grant of condemnation authority only to port districts. That grant is so broad that the condemnation of property for industrial development and trade, normally understood as private uses, is often argued to be public use when part of a port development.
¶95 Because Humble Oil and Port of Grays Harbor offer insufficient support for their proposition, the majority relies on case law from various other states to support its claim that the condemning authority’s decision as to the extent of the property interest is a legislative question. Majority at 630-31. It appears that the majority is not interested in our Washington Constitution but would rather cite to cases from other states that support its conclusion, even though those states have different constitutional provisions.
¶96 Because Washington Constitution article I, section 16 is clearly unique, we have previously refused to apply case law from other states to interpret it. See Westlake, 96 Wn.2d at 627 (rejecting the use of cases from other jurisdictions to interpret article I, section 16 because such cases “are not helpful”). The plain language of our constitution was chosen by our settler forefathers to provide one of the strongest mandates against the taking of private property for private use in the nation.
The judicial determination clause in the Washington Constitution is a clause currently existing in only four other states.[34] At the time of the 1889 Washington Convention, only Colorado *654and Missouri had similar provisions. It is not entirely clear why such a provision was included in Washington’s only constitutional restriction on the sovereign’s otherwise limitless eminent domain power. . . . The only motion relative to this provision in the convention was an attempt to strike out any reference to the legislature. It failed. However, the clear language of the provision, with its difference from most other constitutions and early cases, shows that the constitutional framers sought to place a limit on the legislature by assigning the judiciary the duty to determine the character of proposed public uses.
James M. Dolliver, Condemnation, Credit, and Corporations in Washington: 100 Years of Judicial Decisions — Have the Framers’ Views Been Followed?, 12 U. Puget Sound L. Rev. 163, 175-76 (1989) (footnotes omitted).
¶97 The majority cites Reichling v. Covington Lumber Co., 57 Wash. 225, 106 P. 777 (1910) for the proposition that an immediate public use, even if only temporary, justifies the condemnation of a fee. However, in Reichling, the property had already been condemned years prior to the action, and the real issue was whether collateral attack on the condemnation was proper. In Reichling, as in all other cases addressing this matter, the use intended was not inherently temporary and at least had the potential to be of indefinite duration. Here, construction use is clearly, and admittedly, temporary.
*655¶98 Finally, the majority also reasons that Monorail was entitled to take a fee in the remainder property because it determined that it would be less expensive to do so. However, the amount that property costs does not determine whether it is a public use. Cf. Westlake, 96 Wn.2d at 627 (“A beneficial use is not necessarily a public use.”). Moreover, no actual cost figures were given, and this opinion was lay testimony — neither qualified nor admitted as expert opinion.
¶99 Our “universal rule” states that when a government agency seeks to condemn more property than required for legitimate public purpose, the excess is not for a public use. Here, not only does Monorail have an “associated development” policy that encourages excess condemnation for subsequent resale for private use at a profit, but the agency has made such condemnation a “priority” for the Sinking Ship parcel. Monorail’s sole justification for condemning a fee in this portion of the parcel is the inherently temporary use of construction staging and staff and labor parking. The real purpose is to profit from the later sale.35
¶100 The majority cannot point to a single case approving the condemnation of a fee interest for an inherently temporary use where the condemning agency has a policy of condemning excess property for subsequent resale for private use. The proposition is most reminiscent of Westlake, in which this court disapproved such a condemnation proposal.
¶101 I would hold that under article I, section 16, anything beyond a fee simple in the footprint of the monorail station is not a public use. The constitution of our forefathers and Kubota’s legacy requires this conclusion. The order of public use and necessity should be reversed on this basis alone.
*656D. Necessity for this public use
f 102 Even assuming that Monorail had proved a public use in the entirety of the parcel, it still cannot prove necessity. The majority’s analysis regarding necessity is as flawed as its public use analysis.
|103 Unlike the inquiry into “public use,” which is a constitutionaly mandated inquiry, the inquiry into necessity is a corollary judicial construct. As stated by the majority, several determinations of necessity have been upheld absent actual fraud. Majority at 629. Yet, the majority fails to note other grounds upon which we overturn findings of necessity Besides fraud, a declaration of necessity is not upheld where there is arbitrary or capricious conduct, manifest abuse of discretion, violation of law, improper motives, or collusion. Stojack, 53 Wn.2d 55. Here, I would hold that the record establishes that Monorail’s action is arbitrary and capricious and based upon improper motives.
¶104 Arbitrary and capricious conduct is defined as “ ‘ “willful and unreasoning [action] and taken without regard to the attending facts or circumstances.” ’ ” Wash. Indep. Tel. Ass’n v. Wash. Utils. & Transp. Comm’n, 149 Wn.2d 17, 26, 65 P.3d 319 (2003) (quoting Rios v. Dep’t of Labor & Indus., 145 Wn.2d 483, 501, 39 P.3d 961 (2002) (quoting Hillis v. Dep’t of Ecology, 131 Wn.2d 373, 383, 932 P.2d 139 (1997))). Monorail has unquestionably engaged in arbitrary and capricious conduct as evidenced by the fact that it seeks to condemn the Sinking Ship property before it has even finalized plans for the station and where the agency has admitted that the station footprint will use only one-quarter to one-third of the parcel. See supra note 24.
¶105 In Port of Everett v. Everett Improvement Co., 124 Wash. 486, 214 P. 1064 (1923), the newly formed Port of Everett sought to condemn property to carry out its purposes but had not formed any definitive plans for property to be condemned. The enabling statute of the port stated that it could condemn only property “necessary for the purposes of the port district.” The court reasoned that:
*657where the grant is of power to acquire only necessary property, there must be a showing that the particular property sought to be acquired is thus necessary, and without some definite stated plan of improvement, this necessity cannot be shown. So here, since there is no such definite plan, it is impossible for the court or anyone to know whether all or what particular part of the property here sought to be condemned is necessary for the use of the port district, and the right of condemnation must fail for this reason.
Everett Improvement, 124 Wash, at 494 (emphasis added).
¶106 Here, Monorail argued that there “is no requirement that a condemning authority must have a final design demonstrating use of the entire site before a condemnation can proceed forward.” Br. of Resp’t at 37. Monorail’s argument is answered by Everett Improvement.
¶107 Like Everett Improvement, the monorail enabling legislation authorizes the agency to condemn only that property which is “necessary or appropriate for [its] facilities.” RCW 35.95A.050(1). Monorail repeated numerous times at the public use hearing that it had no definitive plans for the entirety of the Sinking Ship parcel except for the inherently temporary purpose of construction.36
¶108 By allowing premature condemnation of the remainder property, the majority implicitly approves the practice of an agency maintaining plans as vague as possible in the hopes of acquiring excess property to generate additional revenue. The lack of a definitive plan alone is fatal to the attempted condemnation and should be held arbitrary and capricious.
f 109 I would also find that Monorail’s policies for associated development (by private parties), combined with the *658agency’s insistence on a fee interest even in the absence of a definitive plan, show improper motives. Monorail intended to infringe the constitutional rights of the property owner here to take property which would appreciate and then be resold by the agency in order to help finance its troubled project. This is not a proper motive since the enabling legislation specified the authorized funding sources and did not authorize Monorail to finance its project through real estate speculation (nor could it constitutionally).
III. CONCLUSION
¶110 The court has, until today, upheld a “universal rule,” which states that if a government agency seeks to condemn more private property than required for its public purposes, the excess is not for a public use. Under our constitution, “[w]henever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public.” Const. art. I, § 16.
fill By upholding Monorail’s decision to take far more property than it needs from a lawful private owner, and by erroneously applying a deferential standard to the agency’s grab of this property, the majority overrules this court’s “universal rule” sub silentio. I would uphold our constitution and agree with the property owner that Monorail (and other agencies of its ilk) should be restrained from abusing private property rights. As demonstrated by Kubota and his legacy, such rights are of exceptional import to our citizens. I believe the authors of our constitution understood this vital principle and drafted and overwhelmingly approved article I, section 16 to protect against such abuse. I dissent.
Sanders, J., concurs with J.M. Johnson, J.
The parcel in question is located in historic Pioneer Square and is triangular in shape. See Pet’rs’ Ex. 2, at 5. It is bordered by Second Avenue, James Street, and Yesler Way. Id.
The Elevated Transportation Company is the predecessor of Monorail. See City of Seattle Proposition No. 2 (Initiative 53: The Monorail). Although Monorail operates entirely within the City of Seattle, the agency is an independent municipal corporation. See majority at 621-22; RCW 35.95A.020.
The majority's fact section states that "preliminary designs show the station footprint covering the entire property, other more recent designs show a smaller footprint." Majority at 620. Although technically correct, this statement is misleading. The former are unquestionably no longer under any serious consideration. See Br. of Resp't at 7 n.13 ("depending on the ultimate station design, approximately 6,500 to 10,000 square feet of the approximately 20,000 square foot parcel will be covered by the station footprint"). See also Report of Proceedings *643(RP) at 54 (“THE COURT: The bottom line is the footprint of the Yesler station is not going to take the entire triangle of the Yesler property? THE WITNESS: That’s correct.”).
This is temporary parking and not long-term parking for monorail patrons. See “staff and labor parking” on preceding diagram. There will be substantially less parking than the present public garage.
There was actually only one bidder.
The Transit Way Agreement between the City of Seattle and Monorail establishes conditions under which Monorail may use the city's rights-of-way.
Fully quoted infra p. 646.
All delegations of state authority are to be construed strictly, and this is “ ‘especially true with respect to the power of eminent domain, which is more harsh and peremptory in its exercise and operation than any other.’ ” State ex rel. Chesterley v. Superior Court, 19 Wn.2d 791, 800, 144 P.2d 916 (1944) (quoting 1 John Lewis, A Treatise on the Law of Eminent Domain in the United States § 388, at 708 (3d ed. 1909)).
The majority suggests, for example, that the agency could create a park out of the excess Sinking Ship property. However, under our cases, construction of a park likely exceeds Monorail’s enabling legislation.
We have stated on numerous occasions that “[s]tate cases and statutes from the time of the constitution’s ratification, rather than recent case law, are more persuasive in determining” the protections of a constitutional provision. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 120, 937 P.2d 154 (1997). Our early jurisprudence demonstrates that legislative determinations of public use are not *649entitled to great weight. See, e.g., Decker v. State, 188 Wash. 222, 227, 62 P.2d 35 (1936) (“[Wlhether the use be ‘really public’ is for the courts to determine, and in the determination of that question they will ‘look to the substance rather than the form, to the end rather than to the means.’ ” (quoting State ex rel. Puget Sound Power & Light Co. v. Superior Court, 133 Wash. 308, 233 P. 651 (1925))); State ex rel. Andersen v. Superior Court, 119 Wash. 406, 410, 205 P. 1051 (1922) (“The legislature can declare in the first instance that the purpose is a public one, and it remains the duty of the court to disregard such assertion if the court finds it to be unfounded.”); Langdon v. City of Walla Walla, 112 Wash. 446, 456, 193 P. 1 (1920) (‘We shall assume that the question of public use is a judicial question in Oregon, as it is in our state, and that such question has been and will be decided by the courts of that state . ...”); Healy Lumber Co. v. Morris, 33 Wash. 490, 501, 74 P. 681 (1903) (“Under such circumstances the case comes to the court without any presumption one way or the other on the subject of public use, but is to be tried by the court like any other question that is submitted to its discretion.”).
The use of the term “necessary” is unfortunate because it is also a term of art in eminent domain jurisprudence. However, there can be no equivocation that this analysis in Convention Center was regarding public use and not necessity. This analysis was completed specifically under the header of “public use” and was later followed by a separate section on “necessity.”
Remarkably, the majority does this after attempting to distinguish Convention Center, 136 Wn.2d 811. As previously quoted, Convention Center held the correct test for inquiries into public use: “[TJhis court must ensure that the entire parcel subject to the eminent domain proceedings will be employed by the public use. The relevant inquiry is whether the government seeks to condemn any more *652property than would he necessary to accomplish purely the public component of the project.” Convention Ctr., 136 Wn.2d at 822. The majority attempts to distinguish Convention Center by observing that it dealt with alleged permanent public use within the footprint of the project. The majority cannot explain, however, why these observations change our “universal rule” that determining whether excess property has been condemned is analyzed under a constitutionally mandated inquiry into public use, and not the deferential judicial construct of necessity.
Ariz. Const, art. II, § 17 (“Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use *654be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public.”).
Colo. Const, art. II, § 15 (“[W]henever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public.”). See also Pub. Serv. Co. of Colo. v. City of Loveland, 79 Colo. 216, 245 P. 493 (1926).
Miss. Const, art. Ill, § 17 (“[W]henever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question, and, as such, determined without regard to legislative assertion that the use is public.”).
Mo. Const, art. I, § 28 (“[W]hen an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall he judicially determined without regard to any legislative declaration that the use is public.”).
Providing Monorail staff free parking in Pioneer Square is unlikely to be a public use.
See, e.g., RP at 22 (“We haven’t done any planning.”); RP at 23 (“There has been no determination at all in our minds at this point.... There are no plans for development on this site.”); RP at 77 (“I think the way I would word that is that we are trying to leave our options open. .. .”); RP at 78 (“We have no intention at this time of doing anything with the property specific.. .. One of the possibilities could be access, one could be a park, one could possibly be selling off residuals sometime in the future.”); RP at 122 (“At the moment no uses appear to me if there is a remainder, what our use of that would be”).